Although concurring in the first three divisions of the majority opinion I dissent from division IV and from the reversing of the case. The reasons follow:
In division IV are set out the three features of the contract that, in the opinion of the majority, prevented the competitive bidding the statutes contemplated. The majority concedes that it would be difficult to pick out any one of these features and hold that it alone is sufficient to demonstrate that unreasonable restrictions on competitive bidding were imposed. A further concession should have been made by the majority, namely, that one of these three features of the contract should not be given any consideration at all. For the majority of course recognizes that "competitive bidding" is a requisite because *Page 15 of what appears in section 6134-d4 to section 6134-d6, Code 1935. What these sections require is a publication of notice of the council's intention to adopt plans, specifications, and a proposed form of contract, and the extent of the work and kind of materials for which bids will be received. But in section 6134-f1, a part of the same act, the town was specifically authorized to deliver the revenue bonds to the contractor in payment for the improvement. The providing in the proposed contract, and in the contract later made, that this statutory thing will be done cannot be said to be a procedure that, at least in the legislative mind, impinged on sections 6134-d4 to 6134-d6. That is self-evident. The legislature's intent is to be found in the act as a whole, not by giving piecemeal consideration. And if that is true then one of the three features of the contract, i.e., the delivering of the bonds to the contractor in payment for the improvement, should have been given no consideration by the majority, and this is the additional concession that the majority should have made, clearly and explicitly. So it is that the real question the majority had for decision was whether unreasonable restrictions on bidding were imposed by the two remaining features of the contract, i.e. (a) the requirement that the contractor bid on the basis of doing all the work and furnishing all of the material, and (b) the requirement that the contractor advance $8,000 to cover engineering, legal, capital, and supplies and incidental expenses.
On the trial plaintiffs offered two engineering-expert witnesses. Their testimony pertained to the feature of the contract above identified as (a). They were in agreement that, in the construction of such plants as the one here involved, one engineering practice that is followed is to advertise for bids for construction of the entire improvement under one contract, that another is to advertise for bids for construction of separate portions, and that still another practice is to combine the two first mentioned. But these experts were not of the same opinion respecting the comparative merits of these practices. It would be an imposition to extend this dissenting opinion by detailing the several advantages to the public each engineer claimed *Page 16 would ensue from following the particular practice he espoused. Nor does so doing seem needful, because the important thing is that the testimony of these witnesses demonstrates that the respective merits of the different practices is a question as to which reasonable minds could readily reach different conclusions. Turning to defendants' evidence it showed that the members of the council made themselves fully acquainted with the alleged advantages and disadvantages inhering in each of these different practices, some members of that body spending time during a number of weeks in journeying to various Iowa towns where like electric plants had been installed and "investigating them from the bottom up." The council also had the specific advice of their attorney respecting the matters. After weighing all this information, the council, exercising its own discretion, decided to advertise for a single bid for the entire improvement. They followed one of the engineering practices used in such cases. They did nothing outside of ordinary course.
The foregoing enables one to realize definitely what plaintiffs were claiming. They concede their claim was not that competitive bidding was eliminated, and admit that bids additional to the one accepted were made for the construction of the whole improvement. So the several prior cases involving the same Act, in which the claims were that there had been no competitive bidding because the accepted bid had been made upon the bidders' own specifications, presented an entirely different question. In its essence plaintiffs' contention in the instant case is founded on the assertion that there would have been more bidding had the proposals contemplated separate bids on designated portions of the improvement. Because under such proposals there would allegedly have been more bidding plaintiffs' conclusion is that defendant council acted illegally in advertising for bids for construction of the improvement under one contract.
Whether defendants acted illegally depends not on some engineer's theory, but wholly upon whether they transgressed or exceeded their statutory powers. Viewed with that in mind one is unable to put the finger on any provision transgressed or *Page 17 unheeded. Plaintiffs have not attempted so to do. It is true that section 6134-f1 authorizes the delivery of revenue bonds to the contractor or contractors in payment for the improvement. Clearly the implication is that there may lawfully be one contractor, or on the other hand, contractors. But if the defendants acted illegally it was because they violated section 6134-d5, the language of which is that the notice "shall state as nearly as practicable the extent of the work; the kind of materials for which bids will be received; when the work shall be done; the time when the proposals will be acted upon; * * *" With these provisions defendants' notice in substance and in terms complied. In the section is no intimation that defendants, in showing the extent of the work, should additionally have split it up into and shown it in parts, and the same is true as to the kind of materials. If such intimation had been intended it is reasonable to believe the legislature would have laid down some guiding directions as to the manner of the splitting up. It is not within our proper functioning to inject into the act implications that cannot reasonably be accorded to the legislative branch. In Davies v. Village of Madelia, Minn., 287 N.W. 1, 5, 123 A.L.R. 569, where the plaintiff was making the same contention as in this case the court pointed out the unreasonableness of adopting plaintiffs' claim of illegality in the following language:
"Logically, if the plaintiffs' argument is sound, the specifications should likewise be offensive even if they called for bids on each unit inasmuch as there are likewise many who could bid on less than a unit but not upon a whole unit in the undertaking. There is nothing unreasonable under the facts presented in demanding that one contractor submit a bid upon the entire work. In fact, the actual result was that three submitted bids on such a basis. The council had the right and the power to make such a requirement. If the entire installation was to be paid for out of earnings, the contract could not well be let to more than one bidder."
The opinion might well have further stated that the affording *Page 18 of so prolific a field of litigation on account of the indefiniteness of the duties that would be imposed on town councils could not have been legislatively intended.
With respect to the remaining feature of the contract, the requirement of advancement of $8,000, no claim of illegality is made by plaintiffs, except on the question of it resulting in fewer contractors bidding. Presumably this feature appears because preliminary expenses for which the $8,000 provided could not have been advanced from any of the town's funds derived from taxation. The complaint is that that provision decreased the number of bidders. Concededly neither this feature of the contract nor the one already discussed can be said to have unreasonably restricted competitive bidding. Nevertheless, says the majority, in cumulative effect they did so restrict. In other words, put in the scales, neither weighed enough. But weighed together they weighed just enough. Surely a close calculation, but a wholly mistaken one because neither feature possessed any weight on the question of illegality, neither feature being wrongful nor illegal when viewed in the light of the act that conferred the powers that were exercised.
I would affirm the decree, holding that both features of the contract were lawful and that in making them a part of the contract the council exercised a discretion the quality of which it is not for us to question.